Chief Electoral Officer v Samoa All People's Party Incorporation [1996] WSCA 1; 07 1996 (1 September 1996)

IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

CA 7/96

BETWEEN

THE CHIEF ELECTORAL OFFICER
appointed pursuant to the Electoral Act 1963
and the Electoral Amendment Act 1995
Appellant

AND

THE SAMOA ALL PEOPLE'S PARTY INCORPORATION
Respondent

Coram: The Rt. Hon. Lord Cooke of Thorndon, President
The Rt. Hon. Sir Gordon Bisson
The Hon. Mr Justice Sheppard

Hearing: 29 August 1996

Counsel: J.S. Schuster for Appellant
K. Robinson for Respondent

Judgment: September 1996

JUDGMENT OF THE COURT DELIVERED BY SIR GORDON BISSON

In the general election on 26 April 1996 Toalepaialii Siueva Pose III Salesa ("Toalepaialii") was elected as the Member for the constituency of Aana Alofi No. 3. The candidate who polled the second highest, Afamasaga Fatu Vaili ("Afamasaga"), filed an election petition dated 14 May 1996 in the Supreme Court alleging a number of electoral corrupt practices against Toalepaialii and seeking orders to have the election of Toalepaialii declared void and to have the petitioner, Afamasaga declared duly elected.

The hearing of the petition commenced on 30 May and continued on 31 May. There was then a break of a few days because of Independence Day celebrations. At that time it was clear to the Court from discussions in Chambers with counsel for Toalepaialii and Afamasaga that there was a real desire on the part of the former to settle the petition out of Court. In fact, the question of his resigning from Parliament was mentioned as partof an out of Court settlement of Afamasaga's petition.

We note in passing that an out of Court settlement by which Toalepaialii agreed to resign and Afamasaga agreed to withdraw his petition, would require the Court to make a report to the Speaker stating whether in its opinion the withdrawal was the result of any corrupt arrangement or in consideration of the withdrawal of any other election petition, and, if so, the circumstances attending the withdrawal (s. 129). This provision and ss. 127, 128 and 130 which deal with withdrawal and abatement of petitions and the substitution of petitioners and respondents demonstrate Parliament's concerti to eliminate corruption from the electoral system.

No settlement was reached but when the hearing resumed on 6 June, counsel for Toalepaialii informed the Court that Toalepaialii had resigned his seat by letter to the Speaker of the Legislative Assembly the previous day, 5 June 1996.

Article 46(2)(b) of the Constitution of the Independent State of Western Samoa provides,

"Tenure of office of members
46. ....

(2) The seat of it Member of Parliament shall become vacant-

(b) if he resigns his seat by writing under his hand addressed to the Speaker;"

To fill that vacancy Art. 48 of the Constitution provides,

"Filling vacancies

48. Whenever the seat of a Member of Parliament becomes vacant under the provisions of Clause (2) of Article 46, the Speaker shall, by writing under his hand, report that vacancy to the Head of State, and the vacancy shall be filled by election in the manner provided by law."

The "manner provided by law" for the filling of the vacancy caused by the resignation of Toalepaialii is found in the Electoral Act 1963 and its several amendments. The following chronology records the procedure which the speaker initiated,

(i) 5 June The Speaker receives resignation from Toalepaialii

(ii) 7 June The Speaker advises the Head of State of vacancy

(iii) 18 June Notification of Legislative Assembly of vacancy by Speaker

(iv) 18 June Resolution of Legislative Assembly for Order issuing Writ by Speaker to supply vacancy

(v) 21 June Gazette notice of vacancy

(vi) 21 June Speaker directs that Writs be issued to fill vacancy

(vii) 5 July Chief Electoral Officer issues Writs of election for By-Election on 2 August

(viii) 5 July Gazette notice of Writ of election containing time periods for nomination of candidates, polling day last day for return of the Writ

(ix) 2 August Date for By-Election

Returning now to refer to the election petition, the hearing of which resumed on 6 June, the Court found a prima facie case had been proved of corrupt practice by Toalepaialii. He called no evidence in his own defence but called evidence to establish allegations of corrupt practice against Afamasaga.

The hearing was concluded on 18 June, the same day as the Speaker notified the Legislative, Assembly (then sitting) of the vacancy brought about by Toalepalalli's resignation and the Legislative Assembly resolved to order the Speaker to issue a writ for a by-election to fill the vacancy. The Chief Justice delivered judgment on 26 June finding a number of allegations of corrupt practice proved against Toalepaialii and one allegation of corrupt practice proved against Afamasaga.

The Court declared the election of Toalepaialii void in terms of s. 12 of the Electoral Act which provides,

"112. Avoidance of election of candidate guilty of corrupt practice - where a candidate who has been elected at any election is proved at the trial of an election petition to have been guilty of any corrupt practice at the election, his election shall be void."

It should be noted that by s. 117 of the Electoral Act the decision of the Supreme Court on the hearing of an election petition is final and conclusive and without appeal and shall not be questioned in any way. We record also that neither counsel contended that the election petition abated by reason of the resignation.

On 5 July the Court reported to the Speaker pursuant to s. 119 of the Electoral Act that corrupt practices had been proved and on 9 August the Court forwarded to the Speaker pursuant to s. 118 of the Electoral Act a certificate that the election of Toalepaialii was void. Section 121(2) provides that on being informed by the Speaker of the certificate and any report of the Court, the Legislative Assembly shall, among other things, give the necessary directions for issuing a public notice for a new election.

As it happened, a new election was already due to be held on 2 August, seven days before the Court's certificate that the election was void. On 2 August the Court on the motion of the respondent, the Samoa All People's Party Incorporation, granted an interim injunction to stop the by-election which, in consequence, was discontinued.

The respondent's motion was filed when it became aware, after registering its candidate for the Aana Alofi No. 3 by-election, that the rolls to be used in the by-election were not to be the rolls used in the past general election but rolls of electors compiled under s. 17 in Part III of the Electoral Act which requires the Registrar for each constituency to compile and at all times maintain an electoral roll which he shall make and keep as complete and accurate as possible. The respondent claimed that the roll should comply with the provisions of s. 113A of the Electoral Act which was introduced by s. 2 of the Electoral Amendment Act (No. 2) 1991 and amended by s. 3 of the Electoral Amendment Act (No. 2) 1995.

Section 113A, as amended, is as follows

"[113A. Rolls to be used in by-election when original election avoided - Where as a result of the avoidance of an election pursuant to a decision of the Supreme Court in respect of an Election Petition it is necessary for a by-election to be held, and notwithstanding any other provision of this Act, the main roll and supplementary roll which were used at the election which has been avoided shall be used at the by-election without amendment or addition:]

[Provided however that the Registrar shall amend the Rolls used at the election which has been avoided by removing therefrom the names of any persons who have become disqualified for registration as electors or voters pursuant to section 16B of this Act after the date of the election which has been avoided.]"

In its original wording, s. 113A provided for the rolls used in the avoided election to be used for the by-election "without any amendment or addition" but amendments to the Act introduced in the Electoral Amendment (No. 1) Act 1995 made it necessary to add the proviso to s. 113A so that the rolls could be amended to remove the names of persons disqualified under s. 16B. Those persons disqualified as electors or voters are persons detained under the Mental Health Ordinance 1961, or in any prison pursuant to a conviction or those whose name is on the Corrupt Practices List made out for any constituency. The Registrar is required by s.32(1)(d) to remove at any time from any roll "the name of every person whose name is entered on the Corrupt Practices List made out for that constituency ..." The Corrupt Practices List was introduced, again in the Electoral Amendment Act (No. 1) of 1995, the relevant provisions of which are,

"32A. Corrupt Practices List - Where it is proved before the Registrar that any person who is registered or who applies for registration as an elector or voter has within the immediately preceding period of 4 years-

..........

(b) Been reported by the Supreme Court on the trial of an election petition to have been proved guilty of a corrupt practice, the Registrar shall enter the name, residence and description of that person and particulars of the report on a list to be called the Corrupt Practices List."

We have traced these provisions to show that following the report of the Supreme Court under s. 119 to the Speaker on 5 July the names of Toalepaialii and Afamasaga would be entered on the Corrupt Practices List, they would be disqualified as electors or voters and their names would be removed from the rolls to be used for the by-election. In this way they would not be able to stand for re-election in the by-election for the vacant seat in the Aana Alofi No, 3 constituency.

As we have already mentioned, an interim injunction restrained the holding of the by-election on 2 August. Then on 8 August, the day before the Court certified the election of Toalepaialii to be void, the appellant, the Chief Electoral Officer, moved to have the interim injunction rescinded on the grounds that s 13A did not apply, This motion was denied by the Chief Justice in his judgment delivered on 12 August.

On 29 August the appellant applied on appeal to this Court for the injunction to be lifted and for an order directing the appellant to conduct the by-election "as if it had not been interrupted using a roll composed under Part III of the Act". There is no question that if the by-election was necessary because of the resignation of a Member of Parliament who had not been found guilty of any corrupt practice and his election not reported to the Speaker as void, the rolls to be used in that by-election would be those kept up-to-date under Part III, s. 7, of the Electoral Act. But the question arises in this case whether s. 113A applies to the by-election to be held on 2 August, pursuant to writs issued by order on 18 June of the Legislative Assembly, notwithstanding that the Supreme Court had not certified to the Speaker that the election was void until 9 August. Furthermore the resignation on 5 June thereby creating a vacancy for that seat in terms of Art. 46(2)(b) of the Constitution was three weeks before the Court delivered its judgment on 26 June voiding the election. In stating the essence of the case before him the Chief Justice said,

"........ whether or not section 113A applies to the present by-election must depend on whether the avoidance of the election of Toalepaialii pursuant to a judgment of this Court in respect of the election petition by Afamasaga made it necessary for a by-election to be held."

Given the circumstances of Toalepaialii's resignation during the hearing of an election petition alleging corrupt practices by him, the Chief Justice said at p.7,

"............ the clear and irresistible inference is that when Toalepaialii resigned his parliamentary seat he knew or had reasonably foreseen that some of the allegations in the election petition against him would be established and that the Court would so find and declare his election void. I see no other realistic explanation for Toalepaialii's action in resigning his parliamentary seat on 5 June so soon after he was elected in a matter of weeks on 26 April. He foresaw and anticipated what the judgment of the Court was going to be. In that regard, I must say that Toalepaialii was dead right. But with respect to Toalepaialii, any expectation he might have had that Afamasaga would thereby withdraw or discontinue his petition thus avoiding any findings of corrupt practice so that Toalepaialii could run again as a candidate in the by-election which would follow did not eventuate."

The Chief Justice took the view that the reasons which prompted Toalepaialii's resignation were relevant to the separate question whether s. 113A applied to the by-election and settled the question of the rolls to be used.

He continued at p.8,

"Section 113A does not expressly spell out whether the avoidance of an election pursuant to a judgment of the Court in respect of an election petition which has made it necessary for a by-election to be held is restricted to an avoidance which has already occurred or whether it includes such avoidance of an election which is reasonably foreseen, expected or anticipated but has not yet occurred. To give force and life to the provisions of section 113A I am of the view that the provisions of section 113A apply not only to the avoidance of an election which has, actually occurred but also to the avoidance of an election which is reasonably foreseen, expected or anticipated and such foreseeability expectation or anticipation turns out to be well-founded. This interpretation would give force and life and promote rather than defeat the intention and purpose of section 113A."

The Chief Justice based his interpretation of s. 113A on "a purposive approach which seeks to give effect to the true purpose of the legislation ..." (Pepper (Inspector of Taxes) v. Hart and related appeals[1992] UKHL 3; , [1993] 1 All E.R. 42, Lord Griffiths at 50) and on a construction which will "promote the general legislative purpose underlying the provision". (Lord Denning M.R. in Nothman v. Barnet London Borough Council [1978] 1 All E.R., 1243, 1246.

In support of his interpretation of s. 113A the Chief Justice pointed to the link between the judgment of the Court and the by-election in that, as a result of the Court's report to the Speaker, both Toalepaialii and Afamasaga were disqualified from standing as candidates in the by-election. The Chief Justice said, "Either the Court's judgment applies to the by-election in all its relevant aspects or it does not apply at all".

It was said by the Court of Appeal of New Zealand in its Judgment delivered by Cooke P., as he then was, in Northland Milk Vendors Association Inc. v. Northern Milk Ltd. [1988] 1 N.Z.L.R. 530, 538:

" ......... the Courts must try to make the Act work while taking care not themselves to usurp the policy-making function, which rightly belongs to Parliament. The Courts can in a sense fill gaps in an Act but only in order to make the Act work as Parliament must have intended."

See also the similar observations of Mason and Wilson JJ. in their judgment in Cooper Brookes (Woollongong) Ply Ltd. v. Federal Commissioner of Taxation (1981) 147 C.L.R. 297, 320-323.

It may be that Parliament in enacting s. 113A in 1991 and in making the amendments to the Electoral Act and adding the proviso to s. 113A in 1995 did not turn its mind to the situation that has arisen in this case, namely where a by-election is necessary because of the resignation of a member during the hearing of an election petition which in turn resulted in the avoidance of that member's election and made a by-election necessary. The Chief Justice tried to fill that gap by treating the Court's avoidance of the election as the real reason for making the by-election necessary. The member by resigning when he did, did not achieve, if that were his intention, a by-election in which he could stand for re-election as the Court's decision and report resulted in his disqualification and the removal of his name from any rolls. Parliament had by adding the proviso to s. 113A required that the rolls used at the avoided election should be up-dated by the removal of the names of any persons (such as Toalepaialii and Afamasaga) who had become disqualified after the date of the avoided election. Accordingly whether for the by-election in this case rolls under Part III on the resignation of a member or the rolls used in the avoided election were to be used, the disqualified persons' names had to be removed from the rolls in both cases and they could not stand again at the by-election. To this extent there was no gap in the legislation to be filled by the Court.

All that remains to be considered is why Parliament chose not to use in a by-election necessary because of an avoided election, the rolls under Part III which are more up-to-date than those used at the avoided election. If one looks at the wording of s. 113 for Parliament's intention in this regard it is difficult to discern the reason. One could speculate that the intention was to avoid electors exercising their right to transfer from one electorate to the electorate of the by-election as a means of influencing the outcome. That intention is consistent with the Hansard report of the second reading of the Bill. It records a statement by the Prime Minister that a by-election is a continuation of a general election and that the election of a representative at a by-election should be made by the same people whose decision was annulled by the Supreme Court. In other words, the clock is put back and the by-election is a replay of the avoided election except for the removal of certain names from the rolls. That, however, is a policy decision of Parliament and whether the same situation should apply to a by-election due to the resignation of a member who is subsequently found guilty of corrupt practice is in our view again a question of policy for Parliament and not one for the Courts.

We sympathise with the view of the Chief Justice that it is not entirely satisfactory that, by resigning on (for instance) the very eve of an anticipated adverse decision on an election petition against him, a candidate can ensure that new rolls rather than the old rolls are used at the by-election. But to attempt to remedy this by laying down a test based on reasonable foresight of the result of the petition would be to introduce uncertainty in cases less obvious than the present one. It is by no means clear that such a test, with all its scope for arguments, would give effect to the legislative policy underlying s. 113A. So the principle of making the Act work as Parliament must have intended cannot apply. Realising this difficulty, Mr Robinson for the respondent put in the forefront of his submissions a proposed solution different from that of Sapolu C.J. Counsel contended that resignation resulting in the use of the new rolls should not be open once an election petition alleging corrupt practice against the resigning candidate has been launched. But it is equally impossible to be confident that an absolute rule of that kind would give effect to Parliamentary policy. In truth, as we have said, the issue is one for the legislature and not the courts.

We do not see how the extension of s. 113A to apply to the avoidance of an election which is reasonably foreseeable and which does eventuate, resolves the problem which arose in this case. A by-election was already necessary by virtue of the member's resignation before it became necessary because the election was declared void. The Chief Justice saw the essence of the case to be whether s. 113A applied to the by-election. Did the resignation addressed to the Speaker or the Court's report made to the Speaker, both of which made a by-election necessary, determine the rolls to be used in the by-election? With the greatest of respect to the commendable approach of the Chief Justice, we are satisfied that the answer of the Chief Justice to that question "rightly belongs to Parliament as a policy-making function which the Court should not usurp". Various changes might be made by Parliament to meet the situation. One example is to provide as appears in Canadian legislation 41 Vict C.5 that a member of Parliament shall not resign his seat while his election is being lawfully contested, as in an election petition alleging corrupt practice. (We draw this example from the report of Sayre v. Le Blanc (1883) 23 N.B.R. 147, 154, S.C. New Brunswick).

For the reasons we have given the appeal must be allowed.

The orders of this Court are-

1. that the injunction granted by the Court on 2 August 1996 is set aside.

2. that the Chief Electoral Officer conduct the by-election for Aana Moll No. 3 constituency using rolls composed under Part III of the Electoral Act 1963.

Costs not being sought, there will be no order as to costs.

The Rt. Hon. Lord Cooke of Thorndon, President
The Rt. Hon. Sir Gordon Bisson
The Hon. Mr Justice Sheppard

Solicitors:

Office of the Attorney-General for Appellant
Anae Tony Pereira, Apia, for Respondent